SANKAR PAIKARAY,BALUGAON vs. I.T.O. KHURDA WARD, KHURDA

Shri S.K.Agrawalla, ld AR appeared for the assessee and Shri S.C.Mohanty, Sr. DR appeared for the revenue.

The approval granted by ld Pr.CIT-1, Bhubaneswar at pages 3 & 4 of paper book, which reads as follows:

It was the submission that on perusal of the approval at para 12 as provided by ld Pr. CIT-1, Bhubaneswar refers to a single word ‘Yes’. It was the submission that in regard to assessment years 2012-13 and 2013-14, the said form is also not provided. It was the submission that for the assessment years 2010-11 and 2011-12 by side of ‘Yes”, the signature is that of JCIT. It was the submission that at the outset ‘yes’ does not show application of mind. It was the submission that if the word ‘yes’ mentioned therein is to be read as written by JCIT, there is no specific approval granted by the Pr. CIT-1, Bhubaneswar. Ld AR drew our attention to the decision of the Hon’ble Delhi High Court in the case of Pr. CIT vs Pioneer

A plain reading of the aforesaid provision would indicate that Section 151 of the Act stipulates that the Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner must be “satisfied”, on the reasons recorded by the AO, that it is a fit case for the issuance of such notice. Thus, the satisfaction of the prescribed authority is a sine qua non for a valid approval as per the said Section.

A perusal of the proforma attached as Annexure-II in the instant appeal would suggest that though the ACIT has appended his signatures by P a g e 6 | 15 : Assessment Yea r-2010-2 Assessment Yea r-2011-2012 Assessment Yea r-2012-2013 Assessment Yea r-2013-2014 ITA No.372/CTK/2023: Assessment Yea r-2015-2016 writing in his hand “Yes, I am satisfied”, however, the Principal Commissioner of Income-tax [“PCIT”] has merely written “Yes” without specifically noting his approval, while recording the satisfaction that it is a fit case for issuance of notice under Section 148 of the Act.

Thus, the incidental question which emanates at this juncture is whether simply penning down “Yes” would suffice requisite satisfaction as per Section 151 of the Act. Reference can be drawn from the decision of this Court in N. C. Cables Ltd., wherein, the usage of the expression “approved” was considered to be merely ritualistic and formal rather than meaningful. The relevant paragraph of the said decision reads as under:- “11. Section 151 of the Act clearly stipulates that the Commissioner of Income-tax (Appeals), who is the competent authority to authorize the reassessment notice, has to apply his mind and form an opinion. The mere appending of the expression "approved" says nothing. It is not as if the Commissioner of Income-tax (Appeals) has to record elaborate reasons for agreeing with the noting put up. At the same time, satisfaction has to be recorded of the given case which can be reflected in the briefest possible manner. In the present case, the exercise appears to have been ritualistic and formal rather than meaningful, which is the rationale for the safeguard of an approval by a higher ranking officer. For these reasons, the court is satisfied that the findings by the Income-tax Appellate Tribunal cannot be disturbed.”

Further, this Court in the case of Central India Electric Supply Co. Ltd. v. ITO [2011 SCC OnLine Del 472] has taken a view that merely rubber stamping of “Yes” would suggest that the decision was taken in a mechanical manner. Paragraph 19 of the said decision is reproduced as under: - “19. In respect of the first plea, if the judgments in Chhugamal Rajpal (1971) 79 ITR 603 (SC), Chanchal Kumar Chatterjee (1974) 93 ITR 130 (Cal) and Govinda Choudhury and Sons case (1977) 109 ITR 370 (Orissa) are examined, the absence of reasons by the Assessing Officer does not exist. This is so as along with the proforma, reasons set out by the Assessing Officer were, in fact, given. However, in the instant case, the manner in which the proforma was stamped amounting to approval by the Board leaves much to be desired. It is a case where literally a mere stamp is affixed. It is signed by an Under Secretary underneath a stamped Yes against the column which queried as to whether the approval of the Board had been taken. Rubber stamping of underlying material is hardly a process which can get the imprimatur of this court as it suggests that the decision has been taken in a mechanical manner. Even if the reasoning set out by the Income-tax Officer was to be agreed upon, the least which is expected is that an appropriate endorsement is made in this behalf setting out brief reasons.

In the case of Chhugamal Rajpal, the Hon‟ble Supreme Court refused to consider the affixing of signature alongwith the noting “Yes” as valid approval and had held as under:- “5. --- Further the report submitted by him under Section 151(2) does not mention any reason for coming to the conclusion that it is a fit case for the issue of a notice under Section 148. We are also of the opinion that the Commissioner has mechanically accorded permission. He did not himself record that he was satisfied that this was a fit case for the issue of a notice under Section 148. To Question 8 in the report which reads “whether the Commissioner is satisfied that it is a fit case for the issue of notice under Section 148”, he just noted the word “yes” and affixed his signatures thereunder. We are of the opinion that if only he had read the report carefully, he could never have come to the conclusion on the material before him that this is a fit case to issue notice under Section 148. The important safeguards provided in Sections 147 and 151 were lightly treated by the Income Tax Officer as well as by the Commissioner. Both of them appear to have taken the duty imposed

This Court, while following Chhugamal Rajpal in the case of Ess Adv. (Mauritius) S. N. C. Et Compagnie v. ACIT [2021 SCC OnLine Del 3613], wherein, while granting the approval, the ACIT has written“This is fit case for issue of notice under section 148 of the Income- tax Act, 1961. Approved”, had held that the said approval would only amount to endorsement of language used in Section 151 of the Act and would not reflect any independent application of mind. Thus, the same was considered to be flawed in law.

The salient aspect which emerges out of the foregoing discussion is that the satisfaction arrived at by the prescribed authority under Section 151 of the Act must be clearly discernible from the expression used at the time of affixing its signature while according approval for reassessment under Section 148 of the Act. The said approval cannot be granted in a mechanical manner as it acts as a linkage between the facts considered and conclusion reached. In the instant case, merely appending the phrase “Yes” does not appropriately align with the mandate of Section 151 of the Act as it fails to set out any degree of satisfaction, much less an unassailable satisfaction, for the said purpose.

So far as the decision relied upon the Revenue in the case of Meenakshi Overseas Pvt. Ltd. is concerned, the same was a case where the satisfaction was specifically appended in the proforma in terms of the phrase “Yes, I am satisfied”. Moreover, paragraph 16 of the said decision distinguishes the approval granted using the expression “Yes” by citing Central India Electric Supply, which has already been discussed above. The decision in the case of Experion Developers P. Ltd. would also not come to the rescue of the Revenue as the same does not deal with the expression used in the instant appeal at the time of granting of approval.

Therefore, it is seen that the PCIT has failed to satisfactorily record its concurrence. By no prudent stretch of imagination, the expression “Yes” could be considered to be a valid approval. In fact, the approval in the instant case is apparently akin to the rubber stamping of “Yes” in the case of Central India Electric Supply.

For the reasons stated above, we do not find any reason to interfere with the decision rendered by the ITAT. In our considered opinion, no substantial question of law arises in the instant case and consequently, the appeal stands dismissed. Pending application(s), if any, are also disposed of. “ 6. It was the submission that the satisfaction recorded is in mechanical manner and without application of mind. It was the submission that the P a g e 9 | 15 : Assessment Yea r-2010-2 Assessment Yea r-2011-2012 Assessment Yea r-2012-2013 Assessment Yea r-2013-2014 ITA No.372/CTK/2023: Assessment Yea r-2015-2016 reopening of assessments for assessment years 2010-2011 to 2013-14 is liable to be quashed.

In reply, ld Sr DR submitted the communication sent by Income Tax officer (J&T), Bhubaneswar on 11th/16th November, 2016, wherein, the approval has been granted by the Pr. CIT on the recommendation of the concerned JCIT, copy of the same reads as follows:

It was the submission that it should be mentioned here that same had been sent alongwith the case records of two volumes which categorically shows that there was application of mind and examination of the records. It was the submission that the approval had been read with annexure sent by ITO. The said annexure reads as follows:

The direction was for production of the case records in respect of approval granted by the JCIT and Pr. CIT-1, Bhubaneswar. The case was adjourned subsequently on 23.7.2024 and 27.8.2024 at the specific request of ld Sr DR. Till today, these records have not been produced. The case records were called for so as to examine the same as against the case records which have been placed before the Bench by ld AR of the assessee to examine whether there would be any other documents, which could be available in the records to show some compliance with the requirements of approval of section 151 of the Act. The order sheet records have also been provided to both the parties. Clearly, the fact that even after four months, the revenue has no intention to provide the records compelling us to accept the documents as produced by ld AR of the assessee though the same relates to internal proceedings between the departmental authorities. A perusal of the approval as granted by the Pr. CIT-1, Bhubaneswar for the assessment years 2010-11 & 2011-12 clearly shows that as against word P a g e 12 | 15 : Assessment Yea r-2010-2 Assessment Yea r-2011-2012 Assessment Yea r-2012-2013 Assessment Yea r-2013-2014 ITA No.372/CTK/2023: Assessment Yea r-2015-2016 “yes”, the signature is that of JCIT insofar as the signature is similar to that of JCIT for the approval letter for assessment years 2012-13 and 2013-14. The approval for the assessment year 2010-2011 and 2011-12 contain the signature of Pr. CIT-1, Bhubaneswar. The same remains undated. Even assuming that the work “yes” has been written by the Pr. CIT-1, Bhubaneswar, obviously, same does not meet the requirement of approval of section 151 of the Act. Coming to the assessment years 2012-13 and 2013-14, admittedly, there is no clear approval by the ld JCIT. Thus, for all the assessment years under consideration, in the absence of speaking order in respect of satisfaction, in view of the decision of Hon’ble Delhi High court in the case of Pioneer Town Planners Pvt Ltd (supra), the approval as granted by JCIT and Pr. CIT is found to be unsatisfactorily recorded. Consequently, applying the principles laid down by the Hon’ble Delhi High Court in the case of Pioneer Town Planners Pvt Ltd (supra) we are of the view that the satisfaction have not been properly recorded. Consequently, the reopening is invalid as also the consequential assessment on account of reopening is also quashed.

In the result, appeals of the assessee for four assessment years stand allowed.

The appeal is time barred by 137 days. The assessee has filed condonation petition supported by affidavit and medical certificates, stating the reasons that due to severe diabetic and hypertension, the eyesight of the assessee was damaged and nothing was visible. Therefore, the assessee could not contact the counsel for filing the appeal before the Tribunal. It is stated that it was in this backdrop that there was delay in filing of appeal. This contention of the assessee has not been found to be false. Hence, we condone the delay of 137 days and admit the appeal for hearing.

A perusal of the order of ld CIT(A) shows that the assessee has not represented the matter before the ld CIT(A). This being so, in the interest of justice, the issues in this appeal are restored to the file of the ld CIT(A) for readjudication after granting adequate opportunity of being heard to the assessee.

In the result, appeal in is partly allowed for statistical purposes.